Tag Archive | "code of conduct"

Editorial Board: After years of efforts, May 18, China and ASEAN annonced an agreement on a draft framework for the code of conduct (COC) in the South China Sea disputes. Experts observed the limited basic elements of the COC without any constraint-based rules in this draft. SEAS Issues presents a review by Prof. Khuong Nguyen and Dr. Tri Vo on ASEAN’s roles in the dispute settlement.

by Khuong Nguyen & Tri Vo | SEAS Issues – The South China Sea (Bien Dong or East Sea in Vietnamese/Western Sea in the Philippines) is situated in the Pacific Ocean, covering an area of 3,448,000 square kilometres. It is surrounded by 9 countries (including China, Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, and Vietnam) and a territory (Taiwan). The South China Sea has an important geopolitical location, and carries strategic importance in terms of politics, economics, maritime transport, environment, national security and defence not only for the contiguous nations in the Asia-Pacific but also for the rest of the world. The South China Sea has rich and diverse natural resources, enabling life activities and economic development, especially fishery resources, mineral resources and tourism potential. The South China Sea lies on the arterial route linking the Pacific Ocean – the Indian Ocean – Europe – Asia – the Middle East. Cargo traffic through the South China Sea accounts for 45% of the total value of shipping worldwide. In accordance with international law, the South China Sea is part of the national defence strategy of a number of coastal nations in particular and of ASEAN, with an aim to avoid acts that threaten security and ensure the general stability in the region and worldwide.

In order to ensure harmonization of interests and build a united, solidary group promoting regional development programs, ASEAN has been taking steps to play a role in solving disagreements among nations in the South China Sea.

The first official declaration by ASEAN on the South China Sea issue entitled “1992 ASEAN Declaration on the South China Sea” was a milestone marking ASEAN’s interest. Since then, the South China Sea issue has become a central theme in ASEAN’s agenda, such as the development of values and customs, maritime security, defence cooperation and conflict prevention. The South China Sea is a key topic for ASEAN to engage in regional security dialogues with other countries such as the United States, Japan and India, and key terms such as “maritime security” and “United Nations Convention on the Law of the Sea” (UNCLOS) has been appeared several times in related official statements.

The South China Sea theme has become an important part of the dialogues and consultations between ASEAN and China. In 1996, ASEAN issued a communiqué endorsed “a regional code of conduct in the South China Sea which will lay the foundation for lone term stability in the area and foster understanding among claimant countries”. But China refused a such legal-based document with the reason that China and ASEAN has signed already “ASEAN-China Cooperation Towards the 21st Century“. In 2002, with determination and effort between ASEAN and China, the two sides agreed to sign the “Declaration on the Conduct of Parties in the South China Sea”, abbreviated as the DOC. This was the most significant agreement that ASEAN and China have reached regarding the South China Sea, and it is considered as a breakthrough in ASEAN-China relations which contributes significantly to the maintenance of peace and stability in the area.

In 2010, as a rotating Chairman of ASEAN, a country with direct disputes in the South China Sea, Vietnam and other countries issued a joint declaration containing 56 points on all areas of cooperation, which mentioned the declaration on the Conduct of the Parties in the South China Sea (DOC).

In 2012, ASEAN made its own declaration on 6 points about the South China Sea issue: (i) Fully implement the 2002 Declaration on the Conduct of Parties in the South China Sea; (ii) Propose guidelines for the implementation of the DOC 2011; (iii) Soon achieve the Code of Conduct in the South China Sea – COC; (iv) Fully respect the fundamental principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS); (v) All parties continue to control themselves and not to use violence; (vi) Peacefully settle disputes on the basis of the fundamental principles of international law, including the 1982 United Nations Convention on the Law of the Sea.

In 2015, at the annual ASEAN Summit in Malaysia, in addition to the dialogues and regional cooperation centred on ASEAN, the South China Sea issue was also a subject that ASEAN Ministers of Foreign Affairs paid special attention to. In 2017 in the Philippines, the issue of the South China Sea was mentioned in a joint announcement in view of the militarization and development in the area. At the same time, the Philippine ASEAN Chairman pledged that maritime disputes, the drafting of the Code of Conduct for Parties in the South China Sea (COC), would be discussed at the ASEAN summit and between ASEAN and China.

Heads of the delegations to the 16th ASEAN Summit, opened in Hà Nội on April 8, 2010, stand for a group photo – Photo: VGP/Nhật Bắc

Regarding the South China Sea and China – the South East Asia countries Relations: Disputes over sovereignty over the South China Sea, including disputes over the islands and waters, occurred after World War II. Initially, countries disputed over the strategic position of the South China Sea. After the United Nations Convention on the Law of the Sea in 1982 provided for “Special Economic Zones”, the importance of resource extraction, particularly fishing and oil and gas extraction became additional reasons for disputes over sovereignty.

The South China Sea dispute critically escalated when China brought the HD-981 rig and more than 80 escorts into Vietnam’s Special Economic Zone in May 2014. Since then, China has stepped up its activities, expressing the desire to dominate almost the entire South China Sea. This is shown by the fact that China has declared the ownership of the “Nine Dash Line” which claims almost 80% of the South China Sea area, built and renovated islands, including submerged islands, floating islands, built infrastructures, airport runway, seaports for Chinese fishing vessels, formed the administrative unit of the so-called “Sansha city”, organized tourism activities to visit the illegally occupied islands, regulated the area fishery ban on other countries, and has been ready to confront, pick fight with other fishing vessels in the area. The acts of China have created tension throughout the region, with strong backlashes from the countries that are directly in disputes and the international community.

In relations with ASEAN, China has sought to put pressure on ASEAN to avoid the regional cooperation against them. In fact, in recent years, China has stepped up its policy of improving bilateral relations with ASEAN countries to ease tensions in the South China Sea. At the same time, it used its economic power by committing major economic investment and projects to exert pressure on the countries with less benefits in the South China Sea, to cause conflicts between internal ASEAN members on the issue of the South China Sea, as well as to avoid mentioning the South China Sea issue in ASEAN’s annual statement.

In the face of escalating tensions, the disputed Southeast Asian nations have relied on ASEAN as a mediator to resolve disputes between China and its member countries. The agreements between ASEAN and China include the commitments to inform each other of any military action in the disputed area, and to avoid building new infrastructures on the islands. China and ASEAN also conducted negotiations to create a code of conduct with an aim to ease tensions over the disputed islands, and to unite the Declaration on the Conduct of Parties in the South China Sea (DOC). ASEAN and China has been made joint efforts to formulate a framework for the Code of Conduct for Parties in the South China Sea (COC).

Despite its efforts, the role of ASEAN in addressing the South China Sea issue seems limited, with the lack of unity between some countries on viewpoints as well actions due to differing national interests. Nevertheless, over the past years, ASEAN has been actively participating in addressing the tensions in the South China Sea, contributing to safeguard the overall interests of the region, building solidarity and strengthening mutual trust in ASEAN.

Khuong Nguyen and Tri Vo are members of the Association of Vietnamese Scientists and Experts (AVSE) and BDTP research group, which are both non-for-profit organizations. The ideas expressed in this article are entirely those of the authors. They do not necessarily represent the views of their affiliated organizations.

The South China Sea is often presented as one of the world’s thorniest territorial disputes. A group of objective, completely disinterested observers, however, would likely find this characterization peculiar. Indeed, to these hypothetical people, it would seem painfully obvious what needed to be done to at least significantly reduce the tensions in the South China Sea. Such a plan would likely start with four simple steps:

Step 1: Put sovereignty issues to one side. These are too complex and too emotive to be solved in the foreseeable future.

Step 2: Establish who claims what. China, for example, is extremely protective of its sovereignty, but it has never made a precise declaration about which areas of the South China Sea it actually owns (vaguely drawing dashes on a map doesn’t count). Claims should be filed with the UN’s International Court of Justice by a certain date – complete with latitude or longitude coordinates – or be considered frivolous by the rest of the world.

Step 3: Use UNCLOS wherever possible. Here’s a happy coincidence: all South China Sea claimants have ratified the United Nations Convention on the Law of the Sea. That should make this situation so much easier to handle. For areas that are not contested, UNCLOS clearly lays out the rights of the claimant state and also of non-claimant states in territorial waters and exclusive economic zones. Any problems and the Convention (Article 279 ff.) also has a detailed dispute-resolution mechanism.

Step 4: Neutralize the contested areas. If the disputants really want to maintain peace and stability in the South China Sea – and they all say that they do – then they obviously need to draw up a set of rules governing what is and is not allowed in disputed zones. They could call it a Code of Conduct, or some something of the sort. Likely rules would include: the demilitarization of disputed areas; refraining from any provocative rhetoric or action, such as new construction projects on contested islands; no exploration for, or exploitation of, marine resources, unless the claimants agree to do it jointly; and the establishment of a dispute resolution mechanism, probably under the auspices of the ICJ.

It all sounds so simple. But beyond the realms of this “Fantasy Dispute Resolution” and back in the messy world of international politics, this tidy plan is a complete non-starter. The underlying reason for this is that different countries diagnose the South China Sea problem differently. Some think the situation is dangerous and needs fixing. Others, notably China, are actually quite comfortable with the status-quo.

For many observers, the recent disputes over Scarborough Shoal and other island territories have become a matter of great concern. Beijing is less disturbed, however. In fact, China’s strategy is to maintain this sometimes messy status-quo, while making outward demonstrations of being cooperative about seeking a lasting solution so as to guard against accusations that it is the problem. It calculates that these tensions are unlikely to lead to conflict, and that they are an acceptable price to pay for its continued ability to act with relative impunity in disputed areas. At the same time, Beijing doesn’t want to overstep the mark, which would harm its standing in Southeast Asia (many parts of which are pro-China), and invite greater U.S. involvement in the region.

Beijing’s grandest cooperative gesture to date was its establishment of the 3 billion yuan ($473 billion USD) China-ASEAN Maritime Cooperation Fund in 2011. Discussions are now underway about how this money can be spent in order to help implement the 2002 Declaration of Conduct(DOC) in the South China Sea. According to Ian Storey, a senior fellow at the Institute of Southeast Asian Studies in Singapore, this is all building up to a tenth anniversary communiqué to mark the original signing of the DOC. But is this really anything to celebrate? The DOC is a failed protocol that was never properly implemented – which is why momentum has built up behind the formulation of a new Code of Conduct. “China’s view is that some ASEAN members have repeatedly violated the DOC; that’s also the view of some of the ASEAN countries about China,” Storey remarks.

“But is China serious about an effective Code of Conduct?” he asks. “I think the answer is no. A really effective code would constrain China’s freedom of manoeuver in the South China Sea, and big countries don’t like that.”

The Philippines, Vietnam, and other interested parties have doubtless reached the same conclusion about China’s commitment to crafting a meaningful COC. Filipino proposals backed by Hanoi for a robust COC have already been diluted by other ASEAN members, for fear of antagonizing China. More recently, the July ASEAN Foreign Ministers Meeting held in Phnom Penh descended into a farce, with Cambodia, the current Chair, blocking constructive debate about the South China Sea dispute in defense of China’s interests. Cambodia has sold ASEAN out: in doing so, it has facilitated a Chinese policy of extraterritorial interference in Southeast Asia’s key institution. For China, it’s been a foreign-policy coup.

Indonesia – doing the job that Cambodia failed to do – subsequently showed ASEAN some leadership after the Phnom Penh fiasco, cobbling together a common position called the “Six-Point Principles on the South China Sea”. Though better than the Cambodian no-show, it’s a lax document that goes no further than calling for “an early conclusion” to the COC drafting process.

That won’t happen. China has already begun soft-pedaling on talks, which are now unlikely to happen until 2013 (the upcoming leadership handover in Beijing all but rules out near-term movement on what has become such a contentious issue). A new code is therefore unlikely to emerge before 2014 at the earliest.

It would be worth the wait, of course, if it was a business-like code that really sought to regulate the behavior of claimant states. But nobody expects it to be. “China will not accept anything that is mandatory,” concludes Carlyle Thayer, an emeritus professor at the Australian Defence Force Academy.

However, these attractive aspects of cooperative diplomacy are outweighed by Beijing’s instinct not to give any ground where sovereignty issues are concerned. “When it comes to high-stake, high-politics issues, such as territorial disputes and strategic rivalries, international agreements have limited impact,” suggests Zhang Baohui, an associate professor at Lingnan University in Hong Kong. “Overall I think China is a status quo power on the South China Sea issues,” Zhang but observes that upholding the status quo cuts both ways: China won’t facilitate a lasting solution, but it won’t be the one to provoke a confrontation either. It will only react forcefully to perceived provocations on the part of others, as in its recent dispute with Manila. At the same time, it will not hold back from pushing the envelope of acceptable behavior, such as upgrading Sansha to city status, for example, or granting new drilling rights to Chinese oil companies.

But what is China’s ultimate objective in all of this? “They just want to play for time, and to drag it out as long as possible,” argues Storey. “What is China’s end game? I don’t think they know themselves.”

Sadly, there is no Plan B for the South China Sea. China and ASEAN appear locked into the futile process of formulating a Code of Conduct that won’t address the types of conduct that actually need addressing. Pity the poor diplomats who will be spending the next two years working on it. The COC is another fantasy – only one that won’t sound good either in theory or in practice.